Criminal Procedure Code (Hons.

I)
PROJECT
WHETHER QUESTIONING OF ACCUSED IS IMPORTANT IN
INVESTIGATION: A CRITICAL APPROACH

PROJECT SUBMITTED TO:

MS. SHREEJAYA PATIL
(ASSISTANT PROFESSOR OF CRIMINAL PROCEDURE CODE )

PROJECT SUBMITTED BY:

RAHUL MANDAVI
Semester VII, Section A

ROLL NO. 125

SUBMITTED ON: 26.09.2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH
Contents
Declaration .............................................................................................................................................. ii
Acknowledgements ................................................................................................................................ iii
Aims and Objectives .............................................................................................................................. iv
REVIEW OF LITERATURE: ............................................................................................................... iv
Research Methodology ........................................................................................................................... v
CONCLUSION ..................................................................................................................................... 19
BIBLIOGRAPHY ................................................................................................................................. 20
BOOKS ................................................................................................................................................. 20
WEBLIOGRAPHY............................................................................................................................... 20

i
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

Declaration

I hereby declare that this research work titled THIN LINE BETWEEN DISPARAGEMENT AND
FAIR USE OF TRADEMARK is my own work and represents my own ideas, and where others ideas
or words have been included, I have adequately cited and referenced the original sources. I also
declare that I have adhered to all principles of academic honesty and integrity and have not
misrepresented or fabricated or falsified any idea/data/fact/source in my submission.

(RAHUL MANDAVI)

ii
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

Acknowledgements

I, Rahul Mandavi, would like to humbly present this project to MS. KUHU RIWARI. I would
first of all like to express my most sincere gratitude to MS. KUHU TIWARI for her encouragement and
guidance regarding several aspects of this project. I am thankful for being given the opportunity of
doing a project on THIN LINE BETWEEN DISPARAGEMENT AND FAIR USE OF TRADEMARK.
I am thankful to the library staff as well as the IT lab staff for all the conveniences they have
provided me with, which have played a major role in the completion of this paper.
I would like to thank God for keeping me in good health and senses to complete this project.
Last but definitely not the least, I am thankful to my seniors for all their support, tips and
valuable advice whenever needed. I present this project with a humble heart.

- RAHUL MANDAVI
SEMESTER VII, SECTION A, ROLL NUMBER 125
BA.LLB (HONS.)

iii
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

Aims and Objectives

I. To understand what is Arrest

II. To understand what is Cobfession

III. To understand confessions given to Police

. REVIEW OF LITERATURE:
1. B.M.Prasad, Manish Mohan; Ratanlal and Dhirajlal, The Code of Criminal
Procedure; LexisNexis; 21st Ed.
2. K.N.Chandrasekharan Pillai; R.V. Kelkars Criminal Procedure; Eastern Book
Company; 6th Ed.

iv
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

Research Methodology

Nature of Research
This research work is descriptive in nature. It describes the perspective of Thin line between
Disparagement and Fair Use of Trademark.

Sources of Data
This study is done with the help of secondary data. This secondary information has been obtained
from published sources such as books, journals, websites, newspapers, research works etc.

v
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

INTRODUCTION

One of the basic tenets of our legal system is the benefit of the presumption of innocence of
the accused till he is found guilty at the end of a trial on legal evidence. In a democratic
society even the rights of the accused are sacrosanct, though accused of an offence, he does
not become a non-person. Rights of the accused include the rights of the accused at the time
of arrest, at the time of search and seizure, during the process of trial and the like.

The accused in India are afforded certain rights, the most basic of which are found in the
Indian Constitution. The general theory behind these rights is that the government has
enormous resources available to it for the prosecution of individuals, and individuals
therefore are entitled to some protection from misuse of those powers by the government. An
accused has certain rights during the course of any investigation; enquiry or trial of an
offence with which he is charged and he should be protected against arbitrary or illegal arrest.
Police have a wide powers conferred on them to arrest any person under Cognizable offence
without going to magistrate, so Court should be vigilant to see that theses powers are not
abused for lightly used for personal benefits. No arrest can be made on mere suspicion or
information. Even private person cannot follow and arrest a person on the statement of
another person, however impeachable it is.

Though the police has been given various powers for facilitating the making of arrests, the
powers are subject to certain restraints. These restraints are primarily provided for the
protection of the interests of the person to be arrested, and also of the society at large. The
imposition of the restraints can be considered, to an extent, as the recognition of the rights of
the arrested person. There are, however, some other provisions which have rather more
expressly and directly created important rights in favour of the arrested person.

In the leading case of Kishore Singh Ravinder Dev v. State of Rajasthan, it was said that the
laws of India i.e. Constitutional, Evidentiary and procedural have made elaborate provisions
for safeguarding the rights of accused with the view to protect his (accused) dignity as a
human being and giving him benefits of a just, fair and impartial trail. However in another
leading case of Meneka Gandhi v. Union of India it was interpreted that the procedure
adopted by the state must, therefore, be just, fair and reasonable.

1
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

ARREST

The word '' ARREST'' is not defined in Code of Criminal Procedure,1973. But, Section 46 of
Cr.P.C explains '' Arrest how made''. Under this section, a police officer is given power to use
all means necessary to effect the arrest in case of such person forcibly resists the endeavour to
arrest him, or attempts to evade the arrest. If we refer a legal dictionary, it conveys the
meaning that ''to deprive one of his liberty by virtue of legal authority.'' It gives another
meaning: '' to stop''; and also conveys meaning: '' to seize''. Thus, it is known that arrest
means'' A seizure or forcible restraint; an exercise of the power to deprive a person of his or
her liberty; the taking or keeping of a person in custody by legal authority, especially, in
response to a criminal charge''.

Under the provision of Section 172 Cr.P.C. every Police Officer conducting
investigation shall maintain a record of investigation done on each day in a Case Diary in the
prescribed Form. Case Diaries are important record of investigation carried out by
an Investigating Officer. Any Court may send for the Case Diaries of a case under
inquiry or trial in such Court and may use such diaries, not as evidence in the case, but
to aid it in such inquiry or trial.

Facts to be incorporated in Case Diaries:

The Case Diary, which is a record of day by day investigation of a case,

shall contain details of the time at which the information reached the
Investigating Officer, time at which the investigation began and was closed, the
place or places visited by him and a statement of the facts and circumstances
ascertained through investigation.

Case Diaries should contain only particulars of actual steps taken or progress made in the
investigation and such details of investigation which have bearing on the case.
Addresses, both present and permanent of the witnesses and all other relevant
details should be invariably recorded in the Case Diaries. The following shall not be
incorporated in the Case Diaries:

Opinion of Investigating Officer, opinion of the Supervisory Officers and

Law Officers
Any conflict of opinion between I.O., Law Officers, SP, DIG and Head Office.

2
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

Recommendations made in concluding report of the O., comments of

Law Officer(s) and Supervisory Officers.
Any other facts/circumstances not relating to investigation of the case.

Every Investigating Officer, to whom part investigation of a case is entrusted,

will also maintain a Case Diary for the investigation made by him. This may be called
Supplementary Case Diary (SCD). SCDs will be taken on record by the Chief
I.O., who may incorporate the gist of important facts disclosed in such
investigation in his own CD for the date when the SCD is received by him. It
is important that SCD must be submitted without any delay. A copy of the CD submitted
by I.O./Chief I.O. to the Superintendent of Police would invariably enclose the
SCDs received by him.

CONCEPT OF CASE DIARY

Section 172 Cr.P.C. lays down that every police officer making an investigation should
maintain a diary of his investigation. Each State has its own police regulations or otherwise
known as police standing orders and some of them provide as to the manner in which such
diaries are to be maintained. These diaries are called case diaries or special diaries. Like in
Uttar Pradesh, the diary under section 172 is known as special diary or case diary and in
some other States like Andhra Pradesh and Tamilnadu, it is known as case diary. The
Section itself indicates as to the nature of the entries that have to be made and what is
intended to be recorded is what the police officer did, the places where he went and the places
which he visited etc. and in general it should contain a statement of the circumstances
ascertained through his investigation. Sub-section (2) is to the effect that a criminal court may
send for the diaries and may use them not as evidence but only to aid in such inquiry or trial.
The aid which the court can receive from the entries in such a diary usually is confined to
utilizing the information given therein as foundation for questions to be put to the witnesses
particularly the police witnesses and the court may, if necessary, in its discretion use the
entries to contradict the police officer who made them. Coming to their use by the accused,
Sub-section (3) clearly lays down that neither the accused nor his agents shall be entitled to
call for such diaries nor he or they may be entitled to see them merely because they are
referred to by the courts. But in case the police officer uses the entries to refresh his memory
or if the court uses them for the purpose of contradicting such police officer then provisions
of Section 161 or Section 145, as the case may be, of the Evidence Act would apply. Section

3
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

145 of the Evidence Act provides for cross-examination of a witness as to the previous
statements made by him in writing or reduced into writing and if it is intended to contradict
him by the writing, his attention must be called to those parts of it which are to be used for
the purpose of contradiction. Section 161 deals with the adverse partys rights as to the
production, inspection and cross-examination when a document is used to refresh the
memory of the witness. It can therefore be seen that the right of accused to cross-examine the
police officer with reference to the entries in the General Diary is very much limited in extent
and even that limited scope arises only when the court uses the entries to contradict the police
officer or when the police officer uses it for refreshing his memory and that again is subject
to the limitations of Sections 145 and 161 of the Evidence Act and for that limited purpose
only the accused in the discretion of the court may be permitted to peruse the particular entry
and in case if the court does not use such entries for the purpose of contradicting the police
officer or if the police officer does not use the same for refreshing his memory, then the
question of accused getting any right to use the entries even to that limited extent does not
arise.

The object of recording case diaries under this section is to enable courts to check the
method of investigation by the police. The entries in a police diary should be made with
promptness in sufficient details mentioning all significant facts on careful chronological order
and with complete objectivity. The haphazard maintenance of a police case diary not only
does no credit to those responsible for maintaining it but defeats the very purpose for which it
required to be maintained. So we can say that this section does not deal with the recording of
any statement made by witnesses. Oral statements of witnesses should not be recorded in the
diary. Similarly the court should not while recording the evidence of investigating office
record anything which came to the knowledge of such an officer during the investigation of
the other case.

A diary kept under this section cannot be used as evidence of any data, fact or statement
contained therein, but it can be used for the purpose of assisting the court in inquiry or trial
by enabling it to discover means for further elucidation of points which need clearing up
before justice can be done.

4
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

In the case of investigation

A police officer, who investigated a criminal case either fully or partly, is entitled to look into
the case diary containing the details of the investigation and refresh his memory while
deposing as a witness before the trial court, the Madras High Court has said.

However, the accused is also equally entitled to cross examine the police officer under
Section 161 of the Indian Evidence Act whenever the investigating officer of the case looks
in to the case diary and deposes from its contents, Justice G.M. Akbar Ali clarified.

The judge said that a combined reading of Section 172 of the Code of Criminal Procedure
and Sections 145,159 and 161 of the Indian Evidence Act made it clear a trial court too was
empowered to call for the case diary to aid it in trying the criminal case.

The court could use the case diary, not as evidence, but only for the purpose of contradicting
the police officer with regard to details such as dates, time and venue of the investigations
conducted by him if there were disparities between the written records and the oral evidence
adduced by him.

Further, no individual other than the police officer and the trial court judge could be allowed
to look into the case diary. The role of the accused was limited to the extent of cross
examining the officer when he happened to refresh his memory from the contents of the
diary, the judge added.

Mr. Justice Akbar Ali also recalled a 113-year-old English judgement passed in Queen
Empress Vs. Mannu (1897) wherein a Full Bench of the High Court dealt with, in detail, the
importance of the case diary, its purpose and how it must be used by the trial courts.

It is the absolute duty of judges and Magistrates to entirely disregard all statements and
entries in special diaries as being in any sense legal evidence for any purpose, except for one
solitary purpose of contradicting the police officer who made the special diary when they do
afford such a contradiction.

Even in that case they are not evidence of anything except that such police officer made the
particular entry which is at variance with his subsequently given evidence. They are not
evidence that what is stated in the entry was true or correctly represents what was said or
done, the age-old judgment read. In the present case, a person caught red handed while
accepting bribe had moved the High Court challenging an attempt made by a Central Bureau
5
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

of Investigation officer to depose from the case diary during the trial of the corruption case
before the Special Court for CBI cases in Chennai.[xiii]

A diary kept under this section cannot be used as evidence of any date, fact or statement
contained therein, but it can be used for the purpose of assisting the court in the inquiry or
trial by enabling it to discover means for further elucidation of points which need clearing up
before justice can be done. It can be used as aid in framing a charge though not for founding
the charge. The magistrate cannot take cognizance or issue process against accused on the
materials contained in the case diary alone, unless facts contained in the report under section
173 constitutes an offence.

The Supreme Court has held that the police diaries of a case under inquiry or trial can be
made use of by a criminal court only for aiding it, in such inquiry or trial. The court would be
acting improperly if it uses them in its judgement or seek confirmation of its opinion on the
question of appreciation of evidence from statements contained in such diaries.[xiv]entries in
police diaries cannot be used as evidence against the accused. They cannot, therefore, used to
explain any contradiction in the evidence of a prosecution witness which the defence has
brought forth for using any portion of his statement under section 161.

Section 313 examination - Complex sentences should not be put to the accused. Questions
co-relating the material objects and the result of their chemical examination, if incriminating,
are to be put to the accused. Sometimes incriminating circumstances are elicited during the
cross examination of witnesses. If those circumstances are sought to be relied on, the court
can do so. But if a conviction is being based on such circumstances then they should be put to
the accused. It is also worthy to note that If an accused admits any incriminating
circumstances appearing in evidence against him there is no warrant that those admissions
should altogether be ignored merely on the ground that such admissions were advanced as a
defence strategy. - State of U.P. , Appellant v. Lakhmi1, (Three judges). In Laliya B. Nyak2, ,
it is held that admission and/or statement made by accused u/s 313 of the Code can be relied
upon as an incriminatory circumstances.

Very often the material objects (muddamaal articles) and the result of chemical examination
are not properly co-related. Make sure that the investigating officer is asked to identify each

1
AIR 1998 SC 1007
2
2013 (1) GLR 331
6
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

item (muddamaal article) in the F.S.L report with reference to the material objects produced
before court.

The court cannot insist that the accused shall keep on standing during the trial particularly
when the trial is long and arduous. Please refer to ratio laid down by Hon'ble Apex Court in
the case of Avatar Singh v. M.P.3. Hon'ble Supreme Court directed all High Courts to make
provision in this regard in their criminal manuals. Please refer to para No.141 of the Criminal
Manual.

The court has, under the proviso to Section 327(1) of the Code, the power to order that any
particular person, witness or police officer not under examination shall not remain in the
court room. A general direction can be given to the Public Prosecutor that occurrence
witnesses to be examined are not allowed to remain in the court hall till their turn arrives.
When the accused objects to the presence of a police officer or other person inside the court
hall, the trial judge has to consider his objections, having regard to the intelligence and the
susceptibilities of the class to which he belongs and such other relevant circumstances Please
refer to ratio laid down by Hon'ble Apex Court in the case of State v. Charulata Joshi4. In
Shylendra Kumar v. State of Bihar5, Hon'ble Apex Court has directed that the investigating
officer must be present at the time of trial of murder cases and if he fails to be present, the
Sessions Judge must issue summons to him.

Courts should make deprecatory remarks about serious lacuna or irregularity in the
investigation by an investigating officer only when it is absolutely necessary. Courts should
bear in mind the time constraints of the police officer in the present system, the ill-equipped
machinery they have to cope with, the traditional apathy of respectable persons to come
forward for giving evidence in criminal cases etc. which are realities which the police force
has to encounter with while conducting investigation. Please refer to ratio laid down by
Hon'ble Apex Court in the case of State of West Bengal v. Mir Muhammed Omar 6; Shyamal
Ghosh v. State of W. B 7; Babu v. Chennai8; Dayal Singh and Ors. v. State of Uttaranchal9;
Kishanbhai v. State of Gujarat10.

3
1982 SC 1260
4
AIR 1999 SC 1373
5
AIR 2002 SC 270
6
- AIR 2000 SC 2988
7
AIR 2012 SC 3539
8
AIR 2013 SC 1769
7
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

Confession

The word confession appears for the first time in Section 24 of the Indian Evidence Act.
This section comes under the heading of Admission so it is clear that the confessions are
merely one species of admission. Confession is not defined in the Act. Mr. Justice Stephen in
his Digest of the law of Evidence defines confession as confession is an admission made at
any time by a person charged with a crime stating or suggesting the inference that he
committed that crime.

In Pakala Narayan Swami v Emperor Lord Atkin observed

A confession must either admit in terms the offence or at any rate substantially all the facts
which constitute the offence. An admission of a gravely incriminating fact, even a
conclusively incriminating fact is not in itself a confession.

In the case of Palvinder Kaur v State of Punjab the Supreme Court approved the Privy
Council decision in Pakala Narayan Swami case over two scores.

Firstly, that the definition if confession is that it must either admit the guilt in terms or admit
substantially all the facts which constitute the offence. Secondly, that a mixed up statement
which even though contains some confessional statement will still lead to acquittal, is no
confession. Thus, a statement that contains self-exculpatory matter which if true would
negate the matter or offence, cannot amount to confession.

However in the case Nishi Kant Jha v State of Bihar the Supreme Court pointed out that there
was nothing wrong or relying on a part of the confessional statement and rejecting the rest,
and for this purpose, the Court drew support from English authorities. When there is enough
evidence to reject the exculpatory part of the accused persons statements, the Court may rely
on the inculpatory part.

Forms of confession

A confession may occur in many forms. When it is made to the court itself then it will be
called judicial confession and when it is made to anybody outside the court, in that case it
will be called extra-judicial confession. It may even consist of conversation to oneself, which

9
AIR 2012 SC 3046
10
Manu/SC/0004/2014
8
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

may be produced in evidence if overheard by another. For example, in Sahoo v. State of U.P.
the accused who was charged with the murder of his daughter-in-law with whom he was
always quarreling was seen on the day of the murder going out of the house, saying words to
the effect : I have finished her and with her the daily quarrels. The statement was held to be
a confession relevant in evidence, for it is not necessary for the relevancy of a confession that
it should be communicated to some other person.

Judicial confession- Are those which are made before a magistrate or in court in the due
course of legal proceedings. A judicial confession has been defined to mean plea of guilty
on arrangement (made before a court) if made freely by a person in a fit state of mind.

Extra-judicial confessions- Are those which are made by the accused elsewhere than before a
magistrate or in court. It is not necessary that the statements should have been addressed to
any definite individual. It may have taken place in the form of a prayer. It may be a
confession to a private person. An extra-judicial confession has been defined to mean a free
and voluntary confession of guilt by a person accused of a crime in the course of conversation
with persons other than judge or magistrate seized of the charge against himself. A man after
the commission of a crime may write a letter to his relation or friend expressing his sorrow
over the matter. This may amount to confession. Extra-judicial confession can be accepted
and can be the basis of a conviction if it passes the test of credibility. Extra-judicial
confession is generally made before private person which includes even judicial officer in his
private capacity. It also includes a magistrate not empowered to record confessions under
section 164 of the Cr.P.C. or a magistrate so empowered but receiving the confession at a
stage when section 164 does not apply.

Section 164 of the Criminal Procedure Code-

Voluntary and non-voluntary confession- the confession of an accused may be classified into
Voluntary and non-voluntary confession. A confession to the police officer is the confession
made by the accused while in the custody of a police officer and never relevant and can never
be proved under Section 25 and 26. Now as for the extra-judicial confession and confession
made by the accused to some magistrate to whom he has been sent by the police for the
purpose during the investigation, they are admissible only when they are made voluntarily. If
the making of the confession appears to the court to have been caused by any inducement,
threat or promise having reference to the change against the accused person proceeding from

9
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

a person in authority and sufficient in opinion of the court to give the accused person
grounds, which would appear to him reasonable for supporting that by making it he would
gain any advantage or avoid any evil of a temporal nature in reference to the proceeding
against him, it will not be relevant and it cannot be proved against the person making the
statement. Section 24 of the Evidence Act lays down the rule for the exclusion of the
confession which are made non-voluntarily.

Section 24 of Indian Evidence Act - confession caused by inducement, threat or promise,

when irrelevant in criminal proceeding- A confession made by an accused person is irrelevant
in a criminal proceeding, if the making of the confession appears to the court to have been
caused by any inducement, threat or promise having reference to the charge against the
accused person, proceeding from a person in authority and sufficient, in the opinion of the
court, to give the accused person grounds, which would appear to him reasonable, for
supporting that by making it he would gain any advantage or avoid any evil of temporal
nature in reference to the proceeding against him.

If a confession comes within the four corners of Section 24 is irrelevant and cannot be used
against the maker.

Ingredients of Section 24

To attract the prohibition enacted in Section 24 the following facts must be established:

That the statement in question is a confession,

That such confession has been made by the accused,
That it has been made to a person in authority,
That the confession has been obtained by reason of any inducement, threat or
promise, proceeding from a person in authority,
Such inducement, threat or promise must have reference to the charge against the
accused, and
The inducement, threat or promise must in the opinion of the court be sufficient to
give the accused ground, which would appear to him reasonable, for supporting that
by making it he would gain any advantage or avoid any evil of a temporal nature in
reference to the proceedings against him.

10
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

Evidentiary value of confession

Value of judicial confession- a case where there is no proof of corpus delicti must be
distinguished from another where that is proved. In the absence of the corpus delicti a
confession alone may not suffice to justify conviction.

A confessional statement made by the accused before a magistrate is a good evidence and
accused be convicted on the basis of it. A confession can obviously be used against the maker
of it and is in itself sufficient to support his conviction. Rajasthan High Court has also held
that the confession of an accused person is substantive evidence and a conviction can be
based solely on a confession.

If it is found that the confession was made and was free, voluntary and genuine there would
remain nothing to be done by the prosecution to secure conviction. If the court finds that it is
true that the accused committed the crime it means that the accused is guilty and the court has
to do nothing but to record conviction and sentence him. No question of corroboration arises
in this case. Normally speaking it would not be quite safe as a matter of prudence if not of
law to base a conviction for murder on the confession of the alleged murder by itself and
without more. It would be extremely unsafe to do so when the confession is open to a good
deal of criticism and has been taken in the jail without adequate reason and when the story of
murder as given in the confession is somewhat hard to believe. This observation was made by
the Supreme Court and therefore it cannot be said to be a good law in the case of judicial
confession.

Now the settled law is that a conviction can be based on confession only if it is proved to be
voluntary and true. If corroboration is needed it is enough that the general trend of the
confession is substantiated by some evidence which would tally with the contents of the
confession. General corroboration is enough.

Value of extra-judicial confession- extra-judicial confessions are not usually considered with
favour but that does not mean that such a confession coming from a person who has no
reason to state falsely and to whom it is made in the circumstances which support his
statement should not be believed.

11
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

The evidence of extra-judicial confession is a weak piece of evidence. The extra-judicial

confession must be received with great case and caution. It can be relied upon only when it is
clear, consistent and convincing. The court has to decide whether the person before whom the
admission is said to have been made are trustworthy witnesses. The extra-judicial confession
is open to the danger of mistake due to the misapprehension of the witness before whom the
confession was made to the misuse of the words and the failure of the party to express his
own meaning. This is also open to another sort of danger. There being no record and there
being no sanction behind it is very easy for the prosecution to catch hold of any witness who
may come and depose that the accused admitted his guilt in his presence on some particular
time. Due to those reasons it is very dangerous for the courts to base conviction on the sole
basis of extra-judicial confession. Usually and as a matter of caution courts require some
material corroboration to an extra-judicial confession statement corroboration which connects
the accused person with the crime in question.

Extra-judicial confessions have to received with great caution and care and when the
foundation of the conviction is the confession alleged to have been made by the accused there
are three things which the prosecution must establish. First, that a confession was made,
secondly, that evidence of it can be given that is to say that it was voluntary and thirdly that it
is true. Such a confession must be proved by an independent or satisfactory evidence.

In State of Karnataka v. A.B.Nag Raj there was allegation that the deceased girl was killed by
her father and step-mother in the National park. The alleged extra-judicial confession was
made by accused during detention in forest office. No mention of said confession in report
given to police nor any witness present there mentioning about the same confession. This
extra-judicial confession cannot be relied on.

Before relying on extra-judicial confession, it must be considered whether the confession was
really made. It should also be considered as to why the accused reposed confidence in the
witnesses stating about the confession. It was alleged that the accused made confession to a
witness who was the widow of one of the conspirators and was helping her husband in
making spears and other weapons. It was held that the confession was not reliable.

Value of retracted confession- A retracted confession is a statement made by an accused

person before the trial begins by which he admits to have committed the offence but which he
repudiates at the trial. After the commission of a serious offence some police officer makes
investigation into the matter, examines witnesses and the accused. If in his opinion the

12
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

accused is proved to have committed the offence, he submits a report to a magistrate having
jurisdiction in the matter. The court takes evidence and examines the accused. If during the
investigation, the accused on being examined by the police officer is willing to admit the guilt
the police officer sends the accused to some magistrate for recording his statement. The
magistrate after being satisfied that the accused admits in his statement to have committed the
offence this recorded statement by the magistrate may be proved at the trial. When the trial
begins the accused on being asked as to whether he committed the crime he may say that he
did not commit the crime. The question may again be put to him as to whether he made
statement before the magistrate during the investigation confessing the guilt. He may deny to
have made the statement at all or he may say that he made that statement due to undue
influence of the police. In this case the confession made by the accused to the magistrate
before the trial begins is called retracted confession.

It is unsafe to base the convict5ion on a retracted confession unless it is corroborated by

trustworthy evidence. There is no definite law that a retracted confession cannot be the basis
of the conviction but it has been laid down as a rule of practice and prudence not to rely on
retracted confession unless corroborated. Courts have convicted persons on retracted
confession when they have been of the opinion that the confession when it was made was
voluntary or consistent and true but the real rule of law about the retracted confession is
where the retracted confession is the sole evidence it can be of little value specially when
made during the competition for a pardon which sometimes occurs where a number of
persons are suspected of an offence,. It very often happens that a number of persons are
accused of murder or dacoity or of any other offence. The person in charge of the
investigation falling on direct and independent evidence chooses some of the accused to
admit the guilt on the promise of making him a witness in the case. Instances are not rare
when a young man is made to admit some guilt due to pressure or fear.

It is really very strange for an accused to confess before the investigation authority that he has
committed the murder. That statement if made without any pressure, fear or hope must be
either due to the remorse or godly fear or it is so because the accused is as truthful as Harish
Chandra and Yudhisthir. If this is so and if the statement was made because the winess was
remorseful or because he made the confession due to fear of god or because he was truthful
there is no reason as to why he resiles from that statement when he is put to trial. Due to this
suspicion a retracted confession can always be suspected to have been extracted by pressure,
undue influence, inducement or threat by some person in authority.

13
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

Proof of judicial confession- Under section 80 of Evidence Act a confession recorded by the
magistrate according to law shall be presumed to be genuine. It is enough if the recorded
judicial confession is filed before the court. It is not necessary to examine the magistrate who
recorded it to prove the confession. But the identity of the accused has to be proved.

Proof of extra-judicial confession- extra-judicial confession may be in writing or oral. In the

case of a written confession the writing itself will be the best evidence but if it is not available
or is lost the person before whom the confession was made be produced to depose that the
accused made the statement before him. When the confession has not been recorded, person
or persons before whom the accused made the statement should be produced before the court
and they should prove the statement made by the accused.

Confession to police

Section 25 confession to police officer not to be proved.

No confession made to a police officer shall be proved as against a person accused of any
offence

Reasons for exclusion of confession to police- another variety of confessions that are under
the evidence act regarded as involuntary are those made to a personnel. Section 25 expressly
declares that such confessions shall not be proved.

If confessions to police were allowed to be proved in evidence, the police would torture the
accused and thus force him to confess to a crime which he might not have a committed. A
confession so obtained would naturally be unreliable. It would not would be voluntary. Such
a confession will be irrelevant whatever may be its form, direct, express, implied or inferred
from conduct. The reasons for which this policy was adopted when the act was passed in
1872 are probably still valid.

In Dagdu v. State of Maharashtra11, supreme court noted:

The archaic attempt to secure confessions by hook or by crook seems to be the be-all and
end-all of the police investigation. The police should remember that confession may not
always be a short-cut to solution. Instead of trying to start from a confession they should
strive to arrive at it. Else, when they are busy on their short-route to success, good evidence

11
A.I.R. 1977 S.C. 1579
14
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

may disappear due to inattention to real clues. Once a confession is obtained, there is often
flagging of zeal for a full and through investigation with a view to establish the case de hors
the confession, later, being inadmissible for one reason or other, the case fundles in the court.

In R v. Murugan Ramasay,12

Police authority itself, however, carefully controlled, carries a menace to those brought
suddenly under its shadow and the law recognises and provides against the danger of such
persons making incriminating confessions with the intention of placating authority and
without regard to the truth of what they are saying.

Statements During Investigation And Before Accusation

A confessional statement made by a person to the police even before he is accused of any
offence is equally irrelevant. The section clearly says that such a statement cannot be proved
against any person accused of any offence. This means that even if the accusation is
subsequent to the statement, the statement cannot be proved.

Confessional Fir

Only that part of a confessional First Information Report is admissible which does not
amount to a confession or which comes under the scope of section 27. The non confessional
part of the FIR can be used as evidence against the accused as showing his conduct under
section 8.

Statement Not Amounting To Confession

A statement which does not amount to confession is not hit by the bar of section. A statement
in the course of investigation was that the design was carried out according to the plan. The
statement did not refer to the persons who were involved in the murder, nor did the maker of
the statement refer to himself. This was held to be not a confessional statement. Hence, not
hit by section 25 . The statement of inspector(crimes) that the accused accepted before him
that he got the counterfeit currency notes from a stranger but the accused denying to have so
stated, was not admissible in evidence.

12
(1964) 64 C.N.L.R. 265 (P.C.) at 268
15
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

Use Of Confessional Statement By Accused

Though the statements to police made by the confessing accused cannot be used in evidence
against him, he can himself rely on those statements in his defence. The statement of the
accused in FIR that he killed his wife giving her a fatal blow when some tangible proof of her
indiscretion was available was not usable against him to establish his guilt. But once his guilt
was established through other evidence, he was permitted to rely upon his statement so as to
show that he was acting under grave and sudden provocation. There is nothing in Evidence
Act which precludes an accused person from relying upon his own confessional statements
for his own purpose

Confession Of An Accused In Polilice Custody To Any One Else-

Section 26 provides that a confession which is made in custody of a police officer cannot be
proved against him. Unless it is made before a magistrate.

In Kishore Chand v. State of Himachal Pradesh, the extra judicial confession was made to
Pradhan who was accompanied by Police (enquiry) Officer. The only interference which
could be drawn from the circumstance of the case, is that the confession was made at the time
when the accused was in the custody of police and it could not be proved against the accused.
It could not be believed that, when a police officer has seen the accused with deceased at last
occasion, he will not take the accused in the custody.

In the case it is evident that the Police Officer has created a scene and to avoid Section 25 and
26, the Police Officer has left the accused in the custody of village head man (pradhan).

The Police Officer in this case has no difficulty to take the accused to the Judicial Magistrate
and to take extra-judicial confession under section 164 of Cr.P.C which has got more
probable value and it gives an opportunity to make the required warning, that this confession
will be used against the accused and after this warning he records the confession. Under
section 26, no confession made by an accused to any person while in custody of a police
officer shall be proved against him.

16
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

Section 27- How Much Of Information Received From Accused May Be

Proved:

Provided that, when any fact is deposed to as discovered in consequence of information

received from a person accused of any offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.

Principle- this section of the act is founded on the principle that if the confession of the
accused is supported by the discovery of a fact then it may be presumed to be true and not to
have been extracted. It comes into operation only-

If and when certain facts are deposed to as discovered in consequence of information

received from an accused person in police custody, and

If the information relates distinctly to the fact discovered.

This section is based on the view that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the information was true and
accordingly can be safely allowed to be given in evidence. But clearly the extent of the
information admissible must depend on the exact nature of the fact discovered to which such
information is required to relate.

In Pandu Rang Kallu Patil v. State of Maharashtra, it was held by Supreme Court that section
27 of evidence act was enacted as proviso to. The provisions of sections of Section 25 and 26,
which imposed a complete ban on admissibility of any confession made by accused either to
police or at any one while in police custody. Nonetheless the ban would be lifted if the
statement is distinctly related to discovery of facts. The object of making provision in section
27 was to permit a certain portion of statement made by an accused to Police Officer
admissible in evidence whether or not such statement is confessional or non confessional.

Scope- section 24, 25 and 26 of the Evidence Act exclude certain confessions. Section 24
lays down that if a confession appears to have been caused by threat, promise or inducement
from some man in authority it will be irrelevant and cannot be proved against the
confessioner. Section 25 excludes a confession made to a police officer. Section 26 lays down
that if a person while in custody of a policeman, confesses his guilt to any other person not
being a Magistrate, his settlement will not be proved against him.

17
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

Section 27 lays down that when at any trial, evidence is led to the effect that some fact was
discovered in consequence of the information given by the accused of an offence in custody
of the police officer, so much of the information as relates to the facts discovered by that
information, may be proved irrespective of the facts discovered by that information, may be
proved irrespective of the facts whether that information amounts to confession or not.

Requirements Under The Section- the conditions necessary for the application of section 27
are:

1. The fact must have been discovered in the consequence of the information received
from the accused.
2. The person giving the information must be accused of an offence.
3. He must be in custody of a police officer.
4. That portion only of the information which relates distinctly to the fact discovered can
be proved. The rest is inadmissible.
5. Before the statement is proved, somebody must depose that articles were discovered
in consequence of the information received from the accused. In the example given
above, before the statement of the accused could be proved, somebody, such a sub-
inspector, must depose that in consequence of the given information given by the
accused, some facts were discovered.
6. The fact discovered must be a relevant fact, that is, to say it must relate to the
commission of the crime in question.

In Suresh Chandra Bahri v. State of Bihar, it is the discovery and the seizure of articles used
in wrapping the dead body and the pieces of Sari belonging to the deceased was made at the
instance of one accused. Articles recovered were neither visible nor accessible to the people
but were hidden under the ground. No public witness was examined by the prosecution in this
behalf. However, the evidence of Investigation Officer did not suffer from any doubt or
infirmity. Articles discovered were duly identified by the witness. It was held that in these
circumstances, failure of Investigating Officer to record the disclosure of statement was not
fatal

In State of Maharashtra v. Bharat Ehagan Lal Raghani, it was held by Supreme Court that,
the fact that seized weapons were displayed by police in press conference was not a ground to
disbelieve the factum of recovery.

18
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

CONCLUSION

This change in the Evidence Act is necessary so as to invigorate the trust and faith of the
people of India in the Judiciary that they will be provided imparted speedy justice to the
wrongs done to them by any person. The draft Criminal Law (Amendment) Bill, 2003 in its
statement of objects and reasons mentions that the disposal of criminal trials in the courts
takes considerable time and that in many cases trial do not commence for as long as 3 to 5
years after the accused was remitted to judicial custody. In lieu of this, it is pertinent that
provisions of Criminal Law be changed so as to reduce the time needed for a common person
to get justice. After all Justice should not only be done, but also be seen to be done.

19
 Whether Questioning of Accused is Important in Investigation : A Critical Approach

BIBLIOGRAPHY

BOOKS
K.N.C. Pillai; R.V. Kelkars Criminal Procedure; Eastern Book Company, 5th Ed., Reprinted,
Pg No. 1.
B.M.Prasad, M. Mohan, Ratanlal and Dhrijlal The Code of Criminal Procedure; Lexis Nexis;
231st Ed.

WEBLIOGRAPHY
http://myblog-rajbhu.blogspot.in/2013/01/charge-sheet.html
https://www.kaanoon.com/indian-law/crpc-173/
http://tilakmarg.com/opinion/amended-power-of-police-to-arrest-a-person-where-
punishment-is-up-to-7-years/
http://www.legalservicesindia.com/article/article/illegal-arrest-1141-1.html
http://www.legalservicesindia.com/article/article/confession-under-indian-evidence-
act-1547-1.html
http://www.lawctopus.com/academike/use-case-diary-investigation/

20